HomeMy Public PortalAboutResolution 01-05 J-Ditch Phase IIRESOLUTION NO. 01-05
A RESOLUTION OF THE CITY OF MCCALL, VALLEY COUNTY, IDAHO,
AUTHORIZING PAYMENT OF THE BALANCE OF THE CONTP~ACT PRICE TO
EMPLOYERS INSURANCE OF WAUSAU, A MUTUAL COMPANY, IN
ACCORDANCE WITH THE TERMS OF THE CONTP~ACT IN THE J-DITCH
PHASE 2 PROJECT; AUTHORIZING MAYOR ALLAN MULLER, TO EXECUTE
AN AGREEMENT TO THAT EFFECT ON BEHALF OF THE CITY; AND
PROVIDING AN EFFECTIVE DATE.
BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE
CITY OF MCCALL, Valley County, Idaho, as follows:
Section 1: As required in Performance Bond
No. 2350 50 051582, issued by Employers Insurance of
Wausau, a Mutual Company (hereinafter "Wausau"), issued to
secure the performance of St. Clair Contractors, Inc., on
the J-Ditch Phase 2 Project, the City of McCall hereby
agrees to pay the balance of the contract price, as
required in Paragraph 3.3 of said bond, to Wausau in
accordance with the terms of the contract, for the above
mentioned project.
Section 2: The Mayor for the City of McCall
is hereby authorized to sign the agreement attached hereto
as Exhibit "A" and incorporated herein by reference,
stating the City of McCall's agreement to pay Wausau the
balance of the contract price in accordance with the terms
of the contract as provided in Section 1, above.
Section 3: This resolution shall take effect
and be in force from and after its passage and approval.
DATED the ~ day of March, 2001.
CITY OF MCCALL
Valley County, Idaho
~ll~n Muller, Mayor
ATTEST:
Consuelo Blake, Deputy City Clerk
AGREEMENT TO PAY IN ACCORDANCE WITH TERMS OF CONTRACT
AGREEMENT made by the City of McCall, an Idaho
Municipal Corporation, as required by Performance Bond No.
2350 50 051582(hereinafter the "Bond"), issued by Employers
Insurance of Wausau, a Mutual Corporation, (hereinafter
"Wausau") to secure the performance of their principal, St.
Clair Contractors, Inc. on the City of McCall J-Ditch Phase
II Project. A copy of said Bond is attached hereto as
Exhibit "1" and incorporated herein by reference.
The City of McCall, Idaho, agrees as follows:
As required by Paragraph 3.3 of the Bond, the City of
McCall agrees to pay the balance of the contract price to
surety in accordance with the terms of the contract.
DATED this
day of March, 2001.
CITY OF MCCALL
VALLEY COUNTY, IDAHO
By~ff~ ~
ALLAN~M-ULLER, Mayor
ATTEST:
Consuelo Blake, Deputy City Clerk
Performance Bond
Bond No. 2350 50 051582
Any singular reference to Contmctor~ Surety, Owner or other party shall be considered plural where applicable.
CONTRACTOR (Name and Address): SURETY (Name and Address of Principal Place
St. Clair Contractors, Inc. of Business): Employers Insurance of
111 E. 40th Street Wausau A Mutual Company
Boise, ID 83714 P.O. Box 4025, Beaverton, OR 97076
OWNER (Name and Address): City of McCall, Idaho; 216 East Park Street; McCall, ID 83638
CONTRACT
~;~t.M~r~;M~0101~0~n N~ne ~un0dred ~ho~sand Nine Hundred Thirteen and
'6 ---D ~ 9 ) ,
Description ~q/ladle and Loc~C~ion~:a~ay o~Mc~a~l -~-~D~tcll~ -' F~ase 2 project located near or adjacent to the City of McCall s
Wastewater Treatment Plant
BOND
Date (Notearlierthan ConmctDate): May 11, 2000
Amount-Three Million Nine Hundred Thousand Nine Hundred
.... '.66/100~-~-~ollars ($3,900,913.66)
Moomcat~on~to mis ~ono form: None
Thirteen and
Surety and Contractor, intending to be legally bound hereby, subject to the terms printed on the reverse side hereof, do each cause this
Performance Bond to be duly executed on its behalf by its authorized officer, agent or representative.
comacacroa
Company: St/
ContraCto'r:
Name and ~l~tle:/
(Space is provided
(Corp. Seal)
SURETY
Cgmpany: Employers _Insu~an~orp. Seal)
of Wausau~A [4utua~ Company .
Signature:
Name and Title: Brenda~'J. ~mith,
(Attach PowerofAttomey) Attorney-in-Fact
;low for signatures of additional parties, if required.)
CONTRACTOR AS PRINCIPAL SURETY
Company: '~ (Corp. Seal) Company: (Corp. Seal)
Signature: Signature:
Name and Title: Name and Title:
EJCDC No. 1910-28-A (1996 Edition)
Originally prepared through the joint efforts of the Surety Association of America, Engineers Joint Contract Documents Committee, the Associated General
Contractors of America. and the American Institute of Architects.
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I. I;,',e,CONI'N,-\CTOP,. and the ~urety, .iointly and se,.erally, bind themselxes, their
heirs, executors, administrators, successors and assigns to the Owner for the
performance of the Contract, which is incorporated herein by reference.
2. If the CONTRACTOR performs the Contract, the Surely and the CONTRACTOR
ha;e no obligation under this Bond, except to participate in conferences as provided
in paragraph 3.1.
3. If there is no OWNER Default, the Surety's obligation under this Bond shall arise
alter:
3.1. The OWNER has notified the CONTRACTOR and the Surety at the
addresses described in paragraph 10 below, that the OWNER is considering
declaring a CONTRACTOR Delhult and has requested and attempted to arrange a
conference with the CONTRACTOR and the Surety to be held not later than fifteen
days after receipt of such notice to discuss methods of perlbrming the Contract. It'
the OWNER, the CONTRACTOR and the Surety agree, the CONTRACTOR shall be
allowed a reasonable time to pertbrm the Contract, but such an agreement shall not
waive the OWNER's right, if iiny, subsequently to declare a CONTRACTOR
Del'au ti; and
3.2. The OWNER has declared a CONTRACTOR Default and tbrmally
terminated the CONTRACTOR's right to complete the Contract. Such
CONTRACTOR Default shall not be declared earlier than twenty days after the
CONTRACTOR and the Surety have received notice as provided in paragraph 3.I;
and
3.3. The OWNER has agreed to pay the Balance of the Contract Price to:
3.3. I. The Surety in accordance with the terms of the Contract:
3.3.2 Another contractor selected pursuant to paragraph 4.3 to
perform the Contract.
4. When the OVvt'NER has satisfied the conditions of paragraph 3, the Surety shall
promptly and at the Surety's expense take one of the lbllowing actions:
4.1. Arrange for the CONTRACTOR, with consent of the OWNER. to
perform and complete the Contract; or
4.2. Undertake to perform and complete the Contract itself; through its agents
or through independent contractors; or
4.3. Obtain bids or negotiated proposals from qualified contractors acceptable
to the OWNER for a contract i'br pertbrmance and completion of the Contract,
arrange i'br a contract to be prepared tbr execution by the OWNER and the contractor
selected with the OWNER's concurrence, to be secured with performance and
payment bonds executed by a qualified surety equivalent to the Bonds issued on the
Contract, and pay to the Ox2v~ER the amount of damages as described in paragraph
6 in excess of the Balance of the Contract Price incurred by the OWNER resulting
from the CONTRACTOR Defauh; or
4.4. Waive its right to perlbrm and complete, arrange lbr completion, or
obtain a new contractor and with reasonable promptness under the circumstances;
4.4.1 After investigation, determine the amount tbr which it may
be liable to the OWNER and. as soon as practicable after the amount is determined,
tender payment therefor to the OWNER; or
4.4.2 Deny liability in whole or in part and notify the OWNER
citing reasons therefor.
5. If the Surety does not proceed as provided in paragraph 4 with reasonable
promptness, the Surety shall be deemed to be in default on this Bond fifteen days
alter receipt of an additional wrttten notice (rom the OWNER to the Surety
demanding Ihat the Surety pertbrm its obligations under this Bond. and the OWNER
shall be entitled to enforce any remedy available to the OWNER. If the Surety
proceeds as provided in paragraph 4.4, and the OWNER refuses the payment
tendered or Ihe Surety has denied
pliability, in t~hole or in part. ~xithout t~rther noI~ce file OWNER shall be entitled
enlbrce any remedy available to the OWNER.
6. After the OWNER has terminated the CONTRACTOR's right to complete the
Contract. and it' the Surety elects to act under paragraph 4.1, 4.2, or 4.3 above, then
the responsibilities of the Surety to the OWNER shall not be greater than those of the
CONTRACTOR under the Contract. and the responsibilities of the OWNER to the
Surety shall not be greater than those of the OWNER under the Contract. To a limit
of the amount of this Bond, but subject to commitment by the OWNER of the
Balance of the Contract Price to mitigation of costs and damages on the Contract. the
Surety is obligated without duplication tbr:
0. I. The responsibilities of the CONTRACTOR tbr correction of defecti,.e
Work and completion of the Contract;
6.2. Additional legal, design professional and delay costs resulting from
CONTRACTOR's Default, and resulting fl'om the actions or failure to act of the
Surety under paragraph 4; and
6.3. Liquidated damages, or if no liquidated damages are specified in the
Contract, actual damages caused by delayed pertbrmance or non-performance of the
CONTRACTOR.
7. The Surety shall not be liable to the OWNER or others lbr obligations of the
CONTRACTOR that are unrelated to the Contract, and the Balance of the Contract
Price shall not be reduced or set off on account of any such unrelated obligations.
No right of action shall accrue on this Bond to any person or entity other than the
OWNER or its heirs, executors, administrators, or successors.
8. The Surety hereby waives notice of any change, including changes of time. to the
Contract or to related subcontracts, purchase orders and other obligations.
9. Any proceeding, legal or equitable, under this Bond may be instituted in any
court of competent jurisdiction in the location in which the Work or part of the Work
is located and shall be instituted within m,,o years after CONTRACTOR Default or
within two years alter the CONTRACTOR ceased working or within two years after
the Surety refuses or lhits to perlbrm its obligations under this Bond, whichever
occurs first. If the provisions of this paragraph are void or prohibited by la,v, the
minimum period of limitation available to sureties as a defense in the jurisdiction of
the suit shall be applicable.
10. Notice to the Surety, the OWNER or the CONTRACTOR shall be mailed or
delivered to the address shown on the signature page.
I l. When this Bond has been furnished to comply with a statutory or other legal
requirement in the location where the Contract was be pertbrmed, any provision in
this Bond conflicting with said statutory or legal requirement shall be deemed
deleted here from and provisions conlbrming to such statutory or other legal
requirement shall be deemed incorporated herein. The intent is that this Bond shall
be construed as a statutory bond and not as a common law bond.
12. Definitions.
12.1 Balance of the Contract Price: The total amount payable by the OWNER
to the CONTRACTOR under the Contract alter all proper adjustments have been
made, including allowance to the CONTRACTOR of any amounts received or to be
received by the OWNER in settlement of insurance or other Claims for damages to
which the CONTRACTOR is entitled, reduced by all valid and proper payments
made to or on behalf of the CONTRACTOR under the Contract.
12.2. Contract: The agreement between the OWNER and the CONTRACTOR
identified on the signature page, including all Contract Documents and changes
thereto.
I2.3. CONTRACTOR Default: Failure of the CONTRACTOR, which has
neither been remedied nor waived, to perlbrm or otherx~,ise to comply with the ierms
o f the Contract.
12.4. OWNER Default: Failure of the OWNER, which has neither been
remedied '~or waived, to pay the CONTRACTOR as required by the Contract or to
perform and complete or comply ',~. it h the o~her terms lhereofi
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